Imithetho yomhlaba yase Msinga (Land Laws of Msinga Project) examining traditional practices and rural development in Weenen/Msinga area
SUMMARY: The project aims to investigate the laws around land and natural resources and the distinction between local law and practice and national laws around land and local authority, both of which are in the process of change. The project aims to provide insight into local practices derived from customary systems of land tenure in a context where traditional social values are still very active, albeit under pressure to change. The action research objectives of the project are to provide information on the Communal Land Rights Act (CLRA) of 2004 to local residents and authorities, to gain an understanding of local land tenure ‘laws’ , practices and emerging tensions, and to assist local stakeholders to think about local solutions to agreed problems, as well as how they might wish to engage with the CLRA when (or if) it is implemented in the Msinga district.
The research findings reveal that property relations are intimately bound up with broader social relationships. Land relations cannot be divorced from socially embedded norms and practices. These insights have important implications for the formulation of appropriate and locally acceptable land tenure policy, and for the implementation of land law.
GEOGRAPHICAL: Msinga district is located in the Midlands of KwaZulu-Natal. The Weenen-Msinga Valley straddles the Tugela River valley and consists of relatively fertile floodplains used extensively for irrigated farming and dry, steep and stony mountains covered with aloes and thorn bush and some hardwoods. The area has an average annual rainfall of 600 mm, the range being 350-900 mm. Production is better suited to livestock than crop production. The dominant vegetation in Msinga is a mixed grass-tree savannah of the so-called ‘’sweetveld’ type, which has excellent value as grazing in the dry winter months.
INSTITUTIONAL: The Msinga district incorporates both ‘communal land’ occupied by ‘tribes’ (Mchunu and Mthembu) and largely white-owned commercial farming land, a large proportion of which is occupied by labour tenants. CAP is located on two former labour tenant farms on the boundary between white farmland and both these tribes. It has been in existence since the mid-1970s and has over the years developed close relationships with local residents and leaders. Most of the farmland on which CAP is located is now being transferred to former labour tenants, some of whom had moved back to the farm over the past three decades. The labour tenants on the CAP farms always regarded themselves as members of the Mchunu tribe (isizwe, or nation), and were located in the Ncunjane ward or isigodi, under their own headman (nduna).
The CLRA applies to all the ‘tribal’ land in the district but has not been implemented anywhere in South Africa as yet, in part because of a legal challenge mounted by the Legal Resources Centre and other lawyers on behalf of four rural communities. A linked piece of legislation, the Traditional Leadership and Governance Framework Act (the TLGFA) of 2003, is being implemented in parts of KwaZulu-Natal , including Msinga. Traditional councils, which in most places are ‘transformed’ versions of the old Tribal Authorities, have recently been established in the Mchunu and Mthembu tribal areas of Msinga . The CLRA envisages that such councils will become land administration committees, representing the ‘communities’ taking ownership of communal land and administering ‘community rules’ on land tenure. This highly controversial provision is at the core of the legal challenge to the Act (Claassens 2005, Cousins 2007).
METHODS
The research team comprises 4 CAP staff members, who are all local residents, a team leader on contract to CAP (Makhosi Mwheli), and a research advisor (Ben Cousins of PLAAS). Methods employed in the project include individual interviews; focus group discussions; transect walks; time lines; mapping exercises; and feedback workshops. Meetings with higher level authority structures, such as the Traditional Council, cascade down to workshops and focus group discussions at more local levels (e.g. the ward, or isigodi), research proceeds to individual interviews, and the process then ‘cascades’ upwards again to report back findings and facilitate discussion of their significance and implications by authority structures. The project is attempting to identify a ‘model’ of land administration, including the official version, and then look at variations, adaptations (actual practice) versus the idealised model. Questions centre on land rights (who qualifies and how gender impacts on land rights), natural resource rights and uses, boundaries and land administration procedures.
SOCIO-ECONOMIC/LIVELIHOODS
The project area is characterised by deep poverty. The local economy is based on social grants and smallholder agriculture. The area is often associated with extra-legal sources of income, such as gun-running, car hijacking and cultivation and sale of marijuana (cannabis sative indica), which contribute to local characterisation of the area as violent and lawless. Most families have access to land and own livestock. Crop production has been in decline as a source of livelihood for some years and increasing numbers of households do not cultivate all their arable land. A few households still produce on a reasonably large scale. The main crops are maize and sorghum (for beer making) intercropped with cowpeas, beans, pumpkins, melons and imifino (spinach). Some people grow dagga, a lucrative but risky crop one given periodic police efforts to destroy dagga fields. Some communities have access to gravity fed furrow irrigation systems (including a large, 100 year old scheme on the Tugela river) that enable the production of vegetable, fruit and green maize crops for direct use but also commercial sales. Returning migrants are increasingly engaging in market gardening, though soil fertile has been adversely affected by artificial fertilisers too liberally applied in the past. Nguni cattle and goats thrive in these conditions and livestock remain important as a source of livelihood for many, but ownership is skewed and many households do not own cattle. Stock theft is a major problem, as is a generalized shortage of water for livestock. Poultry are owned by almost all households.
Land is used predominantly for residential and grazing purposes, although small ‘garden plots attached to the homestead (umuzi) are also very common and used to produce small amounts of maize and vegetables. Natural resources on the commons (thatching grass, timber, fuelwood, brushwood for fencing, medicinal plants and wild fruits) make small but significant contributions to people’s livelihoods.
HIV-Aids has penetrated the area, affecting the composition of traditional families and local norms on the holding and passing of land. Other socio-economic pressures likewise impact on traditional notions of family and property.
INTERIM FINDINGS/KEY MESSAGES (for the full detailed reports of these findings, consult the linked documents listed below)
Land tenure here, as elsewhere, is ‘socially embedded’ meaning that rights and obligations are often defined primarily through social relationships and membership of a variety of social units, including families, households, kinship groups and ‘communities’. This means that social organization is key to understanding land tenure.
The Msinga district is reputed to be a stronghold of Zulu culture and tradition, and the Mchunu tribe in particular is said to be highly ‘traditional’ in character. Nkosi Mchunu is a widely respected chief and is often consulted on matters of Zulu custom. The project has found evidence of underlying value systems and tried and tested structures. Asserting underlying values has a protection function, against too much social change. Nevertheless it was found that local norms and customs are being adapted in innovative ways and that land administration is being invented on an ongoing basis, creating rules and procedures. The major shifts are around the acceptance of women headed households.
Research findings so far indicate that there is strong emphasis on family and preservation of the family name (in a system of patrilineal descent). Land tenure is ‘socially embedded’ meaning that rights and obligations are defined primarily through social relationships and membership of a variety of social units, including families, households, kinship groups and ‘communities’.
The general rule in the Mchunu area (as in isiZulu-speaking areas more generally) is that only married people with children to support can be allocated land. Single people cannot be allocated land, and must reside with either their parents or other family members. Land is allocated to a household, under the authority of the (usually male) household head, rather than to individuals. There is thus a strong association between land holding and the necessity of supporting a family from land-based livelihoods.
The underlying ‘model’ of social organization is that of a household headed by a man, who may have several wives. These live in separate residential structures within the umuzi. Each wife is entitled to a field or fields of her own, which she cultivates to provide foods for herself and her children, as well as for her husband when he is eating with her. Married men and their wives and their children may continue to live in their parent’s homestead for many years before establishing their own homesteads, giving rise to large, three or four generation strong ‘compound homesteads’ composed of several marital units. These are still common in the Mchunu tribe, but many married couples are now beginning to establish independent homesteads at an earlier stage than they used to.
The family, meaning here an ‘extended family’ of close relatives not a ‘nuclear’ family of a man and his wife or wives and their children, is the most basic unit of social organization. Together with gender, family membership is a primary determinant of social identity since it forms the basis of a complex web of kinship relationships. Marriage establishes important relationships between two families or descent groups, symbolized by payments of bridewealth (lobolo). Descent is traced primarily through men. It is a patrilineal system, within which there is a central concern with preserving the ‘surname’ of the descent group, in other words the identity of the male lineage. Marriage is virilocal (ie. wives move to the home area or homestead of the husband). Family membership involves legitimate expectations of support from other members but also obligations to provide similar support when requested. These principles and values continue to inform claims to land and practices of land holding.
Social identity is thus linked to land through the lineage system. This has an important spiritual dimension, as Hornby and Alcock (2004: 14-15) explain for KwaZulu-Natal more generally:
Surname is closely linked to the role of ancestors in mediating the past and the future and who ancestors are able to recognize. Land is integral to this mediation because ancestors are only able to recognize communication that takes place from a specific ritualized place on the homestead plot. A specific piece of land is thus integrally connected with a specific family whose name is carried in the male line and is a critical link in the fortunes of that family because of the protection the ancestors give to the living.
‘Socially embedded’ does not necessarily mean that land tenure regimes are static, or even stable, and there are differences in social practices between the labour tenant and original tribal areas. Processes of rapid social change can lead to uncertainties and ambiguities as to the nature and content of rights and obligations. This seems to be the case here in relation to the land rights of women.
In the Mchunu tribal area it is widely acknowledged that fewer couples are getting married than before, partly because of the difficulties of fulfilling all the obligations involved in a traditional marriage (eg the high cost of the cattle required for payment of lobolo). Some couples live together and have children without ‘being married’, and more women than before have children outside of a stable, co-residential relationship. Older informants say that in the past it was ‘shaming’ to have children outside of marriage, but that norms and values seem to be changing.
One result of the declining rates of marriage is thus the emergence of a new practice that unmarried women with sons are being allocated land to establish their own homesteads.
These, and other, emerging practices are being documented in detail by the project.
Rights and obligations are associated with each land use (residential, arable and common property). All members of the Mchunu ‘tribe’ (or nation, isizwe) and their descendants are entitled to land. People from other areas or tribes can be allocated land and settle in the area if the correct procedures are followed, approval is granted, and they become fully-fledged members of the tribe. Rights to land thus derive most fundamentally from accepted membership of the tribe. Equally important, however, is the idea that that rights to land enable a family unit to produce a livelihood for themselves, and thus that only adults who have children to support are entitled to land. The family, in this case an extended family that includes a wide network of kin-related individuals, is thus the immediate social context that influences the form and content of land rights. Between the tribe as a whole and the family are other social units which influence how land is held and used, most notably the isigodi or ward, often comprising several hundred households. The isigodi is the key social unit for land administration purposes.
Land rights provide for three kinds of land use: land for residential purposes (where an umuzi or homestead can be built), land for crop production (arable fields or amasimu), and common land with natural resources that support livelihoods (providing grazing and browse for livestock, trees for firewood and construction, thatching grass, wild fruits, medicinal plants, water for household use and agricultural purposes, clay and sand for building, and so on). There are problems around enforcement of natural resource management rules (e.g. cutting and collection of wood).
Many people acquire their land through ‘inheritance’. The residential site and fields of deceased parents are supposed to be taken over by the eldest son, but if he has already established a separate homestead then another son might take over the land and associated property such as buildings. Brothers who still live within the same compound homestead might go on living there, if they and their wives are able to cooperate, but once married and with children to support they can request separate land of their own. If there are no sons, the homestead and its land might be held by the extended family and inherited by someone else with the family name. One informant maintained that a daughter can take over a family’s land if there are no sons, but only on condition the surname of the family does not change as a result.
Orphans are looked after by family members, either on the father’s or on the mother’s side, until they reach adulthood. The land of their parents (e.g. the residential site) remains vacant and is care-taken by their father’s father or one of his brothers; this might involve using the building materials on the site for their own purposes. The land remains within the father’s descent group until it is ‘inherited’ by one of the sons.
The question of what rights to land women can, or should be able to claim is somewhat uncertain at present, with a range of views being expressed by different informants. The declining rate of the fully-fledged form of customary marriage, without its replacement by civil marriage in most cases, is one obvious reason for the uncertainty. Another might be the influence of processes of social and political change in the wider society that has led to gender equality becoming a constitutional right. Given the central importance of family and marriage in all property systems, such fluidity and uncertainty is bound to provoke a good deal of anxiety about the nature and security of land rights, but here an additional concern is the integrity of the principle of patrilineal descent that underpins social relations, identity and spiritual life in Zulu culture. What is clear is that at present there are divergences between the normative ideal and emerging practices in relation to women’s land rights in the Mchunu area. The project has begun to identify these, including way in which emerging practices differ between areas within the Msinga district that have different historical legacies.
The project has also investigated and documented the different rationales for, and methods of demarcating and enforcing internal boundaries for different land use areas and external boundaries between political areas. There are unresolved external boundary issues and it is feared the CLaRA may reawaken old conflicts (there was a war in 1944).
Land administration refers to procedures for demarcating parcels of land, accepting outsiders into the land holding community, recording landholdings, resolving disputes over land, and enforcing rules for the use of common property resources. It was found that there is a layered system of social and political institutions. In Mchunu land administration procedures are not formally described anywhere, but are widely understood and generally shared. Some key differences in procedure are found between the old ‘tribal area’ and the former labour tenant farms now being returned through land reform. Most land administration in Mchunu takes place at the level of the ward (isigodi), and groups of neighbours play a key role in agreeing to the location of new plots and the acceptance of newcomers from outside the isigodi. Thus, contrary to official versions of land administration, many important day-to-day land administration decisions are not made at Traditional Council level, though ndunas continue a key role in monitoring decisions around new allocations and resolving actual or potential disputes. Final authority is granted through payment of a fee to the nkosi at the tribal office
Project Details
NGO Partner:
Mdukatshani Rural Development Project (MRDP) under the Church Agricultural Project (CAP). CAP is situated in Weenen.
Location:
Weenen-Msinga area, KwaZulu-Natal, straddling two districts.
Funder:
Joseph Rowntree Charitable Trust (JRCT)
Duration of project:
January 2007 - December 2009